Citation Nr: 1813779
Decision Date: 03/06/18 Archive Date: 03/14/18
DOCKET NO. 17-32 475 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for bilateral knee osteoarthritis.
2. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder.
3. Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Veteran represented by: National Association for Black Veterans, Inc.
ATTORNEY FOR THE BOARD
B. Cannon, Associate Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).
The Veteran served on active duty in the United States Army from February 1951 to February 1953.
This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction has since transferred to the RO in Columbia, South Carolina. A hearing was not requested.
The issues of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO.
FINDING OF FACT
The evidence does not support a nexus between an in-service event and bilateral knee osteoarthritis.
CONCLUSION OF LAW
The criteria for service connection for bilateral knee osteoarthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection for the Veteran's knee disorder must be denied. An April 2015 VA medical examination contains a diagnosis of knee joint osteoarthritis, which satisfies the first element of a current disability. The Veteran's January 1953 exit examination indicates "cramps in your legs" as an in-service medical problem so as to satisfy the second element. But the April 2015 VA medical examiner opines that the Veteran's bilateral knee disorder is less likely than not related to his in-service leg cramps because the Veteran's "current symptoms are due to intra-articular pathology, as his remote symptoms while on active duty were muscular." This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Because the weight of the evidence is against a nexus, the third element of service connection is not satisfied. Therefore, the Veteran's claim must be denied.
In reaching this conclusion, the Board has also considered lay statements submitted by the Veteran's children, stating that the Veteran "has often complained of pain in his legs and knees, but did not seek medical treatment, until 2013, when pain was making it difficult for him to walk" and that prior to this the Veteran self-medicated using over-the-counter medications. See August 2015 buddy statement. The Veteran's children are competent to testify about what they observed and what they heard the Veteran say because these symptoms are within the knowledge and personal observations of lay witnesses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There is no reason to doubt the credibility of these statements.
Unfortunately, however, lay statements by themselves are inadequate to support nexus between a knee disorder and in-service muscle cramps, since the subject of a possible relationship between the two conditions requires some medical training or expertise. These statements are therefore of less probative value than the April 2015 VA medical opinion. Accordingly, the Board finds that a preponderance of the evidence is against the claim.
ORDER
Entitlement to service connection for bilateral knee osteoarthritis is denied.
REMAND
A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).
These elements are satisfied with regard to the Veteran's bipolar disorder. The first element is satisfied, in that a December 2011 VA medical record indicates a diagnosis of bipolar disorder. The second element is satisfied, in that members of the Veteran's family state that he has talked about delivering food to battle lines in Korea, losing friends as a result of combat, and experiencing injustice in the military. See August 2015 notice of disagreement; August 2015 buddy statements. The third and fourth elements are satisfied, in that there is an indication that the Veteran's bipolar disorder could be the result of the reported in-service stressors, but there is insufficient evidence of record by which the Board can make a decision. As all four McLendon elements are satisfied, the Veteran is entitled to a VA examination.
Additional development is also required for the Veteran's claim of entitlement to service connection for bilateral hearing loss. In an August 2015 buddy statement, the Veteran's son states that his father was exposed to loud noises during basic training and during service. However, according to the February 2017 VA audiological examiner, the Veteran "states that he was exposed to no hazardous noise during [his] term of service."
Additional development is required to assess in-service noise exposure. This is particularly true where, as here, the Veteran's service treatment records were likely lost in a fire. See December 2014 VA 21-3101 request for information. In cases where service records are missing or presumed destroyed, VA has a heightened duty to assist with the development of evidence in support of the claim and an obligation to carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In light of these considerations, a remand is needed to obtain a personal statement from the Veteran and an addendum medical opinion.
VA treatment records to January 29, 2017, have been associated with the claims file. Therefore, the RO should also obtain all relevant VA treatment records dated from January 30, 2017, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Associate with the claims folder all records of the Veteran's VA treatment from January 30, 2017, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file.
2. Request that the Veteran provide an additional statement regarding the details of in-service noise exposure. The Veteran should be advised that this information is necessary to obtain supportive evidence regarding an in-service stressor for his claim of entitlement to service connection for bilateral hearing loss. The Veteran should be further advised that a failure to respond may result in adverse action against his claim. Any requests made by the RO and any responses received from the Veteran should be noted in the claims file.
3. After completing steps 1-2 above, provide an examination and obtain a medical opinion regarding the nature and etiology of any acquired psychological disorder, including but not limited to bipolar disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions.
a. Identify all acquired psychiatric disorders currently present.
b. Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder, including bipolar disorder, had its onset in service or was otherwise caused by an in-service disease or injury.
c. Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran's discharge from his period of active service.
d. If a diagnosis of PTSD is warranted, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that PTSD is due to exposure to an actual confirmed stressor or the fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror.
In rendering these opinions, the examiner should consider the August 2015 notice of disagreement, the August 2015 lay statements from the Veteran's family members, and any statement provided by the Veteran in response to Instruction 2, above.
The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.
4. After completing steps 1-2 above, an examiner should review the entire claims file and provide the following opinion:
Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed hearing loss was incurred in the Veteran's service.
In reaching these opinions, the examiner should address any statement made in response to Instruction 2, above.
The examiner should also address the following recent medical literature supporting delayed or latent onset of noise-induced hearing loss:
Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth, Kujawa SG, and Liberman MC (2006), J Neurosci. 2006 Feb 15; 26(7): 2115-23;
Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss, Kujawa SG, Liberman MC (2009), J Neurosci. 2009 Nov 11; 29 (45):14077-85;
Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift, Lin HW, Furman AC, Kujawa SG, and Liberman MC (2011), JARO 12:605-16; and
Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates, Furman AC, Kujawa SG, and Libermann MC (2013), J. Neurophysiol. 110, 577-86.
The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.
5. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs